DELHI JUDICIAL SERVICES ASSN Vs. DELHI HIGH COURT

JUDGEMENT

(1.) The unending dispute between the promotees and direct recruits in Delhi Superior Judicial Service has reached the third round in these two writ petitions and we hope and trust that this will be the final round, at least for quite sometime to come. After the judgment of this Court in Singla's Case AIR 1984 SC 1595 : 1984 Lab IC 1659) way back in 1984, disputes arose in the matter of its implementation and the writ petitions filed in this Court under Article 32 on being referred to a Constitution Bench, on a misconceived notion that the validity of the judgment in Singla's Case is pending consideration before a Constitution Bench, remained pending for long 16 years and was finally disposed of by the Constitution Bench since reported in 2000 (8) SCC 25 : (2000 AIR SCW 2945 : AIR 2000 SC 2808 : 2000 Lab IC 2881) Rudra Kumar Sain v. Union of India. The dispute was the manner in which the inter se seniority has to be computed between the direct recruits and promotees in Delhi Higher Judicial Service. The present two writ petitions were initially also there before the Constitution Bench, but in view of the fact that the subject matter of dispute was different, an order had been passed to de-link these two matters. Be it be stated that the writ petitions which had been filed and were disposed of by the Constitution Bench on 22-8-2000 was at the behest of the promotee officers. The second round of litigation was at the behest of some direct recruits, claiming seniority over some of the promotees and that stood disposed of on 31-1-2001. These two writ petitions are at the behest of promotee officers, one by the Association and another by an individual. While the Association of promotee officers claimed the relief that the vacancies available prior to 1987, when Delhi Higher Judicial Service Rules stood amended, will have to be filled up under the pre-amended rules and, therefore, the advertisement that was issued on 6-4-1987, inviting applications for filling up 10 posts by direct recruitment must be struck down, the other application by an individual promotee officer assails the validity of Rules 7, 8, 16 and 17 of the amended rules, which were brought on 17th of March, 1987. The brief facts necessary for disposal of these two writ petitions may be stated hereunder. In exercise of powers conferred by the proviso to Article 309 of the Constitution, the Lieutenant Governor of Delhi in consultation with the High Court of Delhi made a set of rules governing the conditions of service of the Members belonging to the Delhi Higher Judicial Service called the Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as 'the Rules'). The Rules came into force on being published in the Gazette in 1971. The said rules define "Initial recruitment" in Rule 2(g) to mean the first recruitment and appointment made to the service after the commencement of the rules and Rule 5 provides the method of recruitment to the service subsequent to the initial recruitment and Rule 6 provides the method for having the initial recruitment. Rule 16 conferred power on the Administrator to create temporary posts in the service and also to fill up the same in consultation with the High Court by persons from amongst the members of the Delhi Judicial Service. Thus, the temporary posts created by the Administrator were intended to be filled up by promotion from the Delhi Judicial Service. Rule 17 also enables the Administrator to fill up the substantive vacancies in the service by making temporary appointment thereto from amongst the members of the Delhi Judicial Service in consultation with the High Court. Rule 7 provided that recruitment to the Delhi Higher Judicial Service could be from the Bar by direct recruitment but under the proviso, not more than 1/3rd of the substantive posts in the service could be held by the direct recruits. When writ petitions were filed by some of the promotees, O.P. Singla and Ors., making a grievance as to their continuance on ad hoc or temporary basis for years together and as to the discriminatory treatment that is meted out to them, this Court in 1984 4 SCC 450 : (AIR 1984 SC 1595 : 1984 Lab IC 1669); (O.P. Singla v. Union of India came to hold that the so-called quota provided in Rule 7 has been broken and, therefore, the seniority has to be counted on the basis of continuous length of service only, excluding the stop-gap or fortuitous appointment. Following the judgment of this Court in S. B. Patwardhan v. State of Maharashtra, (1977) 3 SCC 399 : (AIR 1977 SC 2051 : 1977 Lab IC 1367) the Court was of the opinion that in a situation whereas 'quota and rota' rule has inevitably broken down, the seniority between the direct recruits and promotees should be determined according to the dates on which they were appointed to their respective posts, so far as direct recruits are concerned and the dates from which the promotees have been officiating continuously either in any temporary posts created in the service or in substantive vacancies to which they were appointed in a temporary capacity. The seniority list was struck down and a fresh seniority list was directed to be prepared on the basis of continuous length of service. Pursuant to the aforesaid decision of this Court, the High Court examined the matter afresh. But as there was no enunciation of the expression "stop-gap, ad hoc and fortuitous," the High Court adopted a peculiar procedure and determined the inter se seniority. Aggrieved by the same, when writ petitions were filed, those writ petitions having been referred to the Constitution Bench, stood disposed of on 22-8-2000, indicating the error committed by the High Court and directing the High Court to re-draw the seniority list on the basis of observations made in the aforesaid Constitution Bench, since reported in (2000) 8 SCC 25 : (2000 AIR SCW 2945 : AIR 2000 SC 2808 : 2000 Lab IC 2881). It may be stated at this stage that the Govt. of India, Ministry of Law and Justice, communicated the decision to the Judicial Department of Delhi Administration in June, 1986, conveying the sanction of the President of India in respect of the creation of 14 temporary posts of Additional District and Sessions Judges. Since at that point of time under the rules in force, appointment to the temporary posts in the service could be made only by promotion from Delhi Judicial Service, the Association of Promotee Officers made a representation to the Chief Justice of the High Court that the newly created temporary posts be filled up by promotion from amongst the members of the Delhi Judicial Service, but that representation having failed to evoke any response from the High Court, a writ petition had been filed in this Court which was registered as Writ Petition No. 1540/1986, praying therein that mandamus be issued to the Lt. Governor of the Delhi Administration as well as the Union of India to fill up the posts of 14 temporary Additional District and Sessions Judges in accordance with the Delhi Higher Judicial Service Rules, 1970. That writ petition was disposed of by an order of this Court dated 18-12-1986, which is quoted herein below in extenso:

(2.) Mr. P. N. Misra, the learned senior counsel, appearing for the Association contended that the posts having been created prior to the amended rules having come into force, those posts could be filled up only in accordance with the unamended rules and necessarily, therefore, could be filled up by promotion from the Members of the Delhi Judicial Service, in terms of Rule 16, as it stood prior to the amendment and in this view of the matter, the advertisement that was issued to fill up 10 posts by way of direct recruitment is contrary to law and is liable to be struck down. Mr. Misra further contended that on a construction of Rule 7(b), even if it is held that the posts were required to be filled up in accordance with the amended rules, 14 posts having been created only 1/3rd of those posts could be filled up by direct recruitment and, therefore, the advertisement is contrary to the provisions of Rule 7(b) proviso.

(3.) Mr. G. P. Thareja, appearing in-person, in addition to the contentions raised by Mr. Misra, further contended that Rules 7, 16 and 17 violate Article 233 as well as Article 16(1) of the Constitution and as such the same must be struck down. He also further contended that even on the basis of calculations made by the High Court itself, the number of posts available for direct recruits could be 9 and not 10.